United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________

No. 98-3261 ___________

United States of America, * * Appellee, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * Andrew Williams, * [UNPUBLISHED] * Appellant. * ___________

Submitted: July 28, 1999 Filed: August 11, 1999 ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________

PER CURIAM.

Andrew Williams appeals from the district court&s1 adverse grant of summary judgment in this action by the United States to recover under a federally guaranteed student-loan promissory note. After careful de novo review, we affirm.

The government&s evidence established (1) the note&s existence, (2) the government&s rights under the note, (3) the defendant&s signature and failure to pay, and

1 The HONORABLE JEAN C. HAMILTON, Chief Judge, United States District Court for the Eastern District of Missouri. (4) the amount owed under the note. Williams contended, without supporting evidence, that a loan was never made. Although the government proved the existence of the loan and the amount owed in a somewhat conclusory fashion, we conclude that the record supports the grant of summary judgment, given Williams&s failure to refute the government&s evidence, as required by Federal Rule of Civil Procedure 56(e) (non- moving party may not rest on mere allegations or denials when presented with properly supported motion for summary judgment).

Williams has moved to strike the government&s brief because it was tardy and contained documents not submitted to the district court with the summary judgment motion. Because Williams filed a reply brief and there is no indication that he was prejudiced by the government&s brief having been filed one day late, we decline to strike the government&s brief in its entirety. However, we strike those portions of both parties& briefs that attempt to expand upon the record before the district court. See Hardin v. Hussmann Corp., 45 F.3d 262, 263-64 (8th Cir. 1995). Neither party chose to put the complete loan file into the summary judgment record before the district court. Our appellate review is based upon the district court record.

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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